At a winter holiday party held every year in a New Jersey elementary school, the children often distribute gifts to each other. But when one five-year-old boy started handing out candy canes, he was immediately restrained. Attached to each candy cane was a religious story relating to Christmas. In the subsequent litigation, a court upheld the school’s right to restrict the boy from giving those candy canes as presents.¹ The basis for that ruling was the establishment clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion.”

In a Texas school district,...

The first liberty protected by the Bill of Rights is religious freedom. The next is freedom of speech. Both are fundamental, individual freedoms.¹ The exercise clause, which guarantees religious liberty, “embraces a freedom of conscience and worship that has close parallels” with the free-speech clause.² And yet, over the course of the last half-century, courts have taken a very different approach to the two freedoms.

The disparity in treatment can be seen through a comparison of two early cases. In Minersville School District v. Gobitis,³ the Court rejected a free-exercise challenge by Jehovah’s Witnesses to compulsory saluting of the American...

The courts have often treated the two religion clauses as if they are at odds, with the exercise clause demanding government accommodation of religious expression and the establishment clause attempting to muffle any such expression occurring on public property.¹ Because of this conflict, religious expression can actually end up in an inferior constitutional status.² Moreover, if used to prohibit government from even recognizing religious principles, the establishment clause may contribute to a marginalization of religion in society.³

Those who see a war between the two clauses generally adhere to the privatization thesis: that religion is a private affair and should...

Over the past several decades, the courts have applied a host of different tests to determine whether a particular governmental action constitutes an establishment of religion. The first and most prominent of these the tests was outlined in Lemon v. Kurtzman. But the Lemon test and its progeny have failed to provide any consistent basis for evaluating establishment clause cases.¹ As one legal scholar puts it: “There is no underlying theory of religious freedom that has captured a majority of the Court,” and every new case “presents the very real possibility that the Court might totally abandon its previous efforts...

Neutrality has become the preferred approach for dealing with establishment clause cases. Given the confusion and contradictions of previous doctrines, neutrality may seem at first glance like a long-overdue solution. But, although it offers the appeal of simplicity, it falls short of fulfilling the underlying purpose of the First Amendment. The neutrality doctrine prevents the government from conferring any special benefits on religion in general, even though history demonstrates that the establishment clause was not intended to make democratic society indifferent to the special role and status of religion. The First Amendment framers did not intend to strip religion of...

In eighteenth-century America, religion was practiced as publicly as politics was, and civil laws often reflected religious values.¹ Public accommodations of religion were frequent, and few people believed that they constituted any kind of establishment of religion.²

A substantial influence in the settling of America was the quest for religious freedom. Massachusetts, Rhode Island, Pennsylvania, and Maryland were all founded for religious reasons, by people seeking relief from the dictatorship of state-established religions in Europe. But the new Americans were not trying to abandon a world in which religion and government were interconnected. They were simply attempting to make the...

With First Amendment freedoms, the courts act as guardians, protectors from the cultural and political forces that threaten those freedoms. In the area of religion, however, the courts have been somewhat tentative and wavering in this role. According to a study completed by legal scholars at the University of Virginia, political attitudes and conflicts have shaped the Supreme Court’s establishment clause opinions more than have original intent or constitutional precedent.¹ Consistent with this finding, liberal justices tend to find establishment violations more often and more readily than do other justices.²

Overall, the Supreme Court has been “far more comfortable” with...

There is a simplicity to the First Amendment that has been lost in all the polarizing social attitudes about religion. The secularization of American culture, as well as all the religious turmoil around the world, has injected a constitutionally unintended suspicion into the judicial interpretations of the establishment clause. And instead of remaining steadfast in its protection of religion, particularly in the face of frequent social and political attacks, the courts have wavered, issuing conflicting and inconsistent opinions. This inconsistency has led one court to describe establishment clause case law as suffering “from a sort of jurisprudential schizophrenia.”¹ But if...

Some of the earliest American colonies were started as havens for religious believers. Nearly the entire educational system in eighteenth-century America was operated by religious institutions. The first liberty mentioned in the Bill of Rights is religious freedom. During the presidency of Thomas Jefferson, religious services were held in the U.S. Capitol.

There is absolutely no historical evidence to suggest that the framers of the First Amendment intended religion to be treated in the same way as any secular institution or activity. Yet, under the neutrality doctrine currently being employed in religion cases, that is exactly how the courts are...

Equal protection is in vogue, and the judicial use of neutrality in religion cases coincides with a larger social trend toward equality and away from any discriminatory treatment. Yet, while neutrality marks a welcome change from Lemon and its hostility toward religion, it still does not capture the spirit and intent of the First Amendment.

As the historical record demonstrates, the First Amendment does not place religion and nonreligion on the same level. It does not give the same importance to each, nor does it command the government to treat them the same way. Given the framers’ belief in the...